On 6 June 2024, the European Court of Justice (ECJ) handed down its judgment on a request for a preliminary ruling from a Slovak court regarding claims for damages from a bidder that was excluded from a procurement procedure.
In this case, INGSTEEL spol sro (Ingsteel) was excluded because it failed to meet the economic and financial requirements in the call for tenders. The Slovak Supreme Court made a preliminary reference request to the ECJ, which, in 2017, found that where a call for tenders requires the provision of a statement from a bank undertaking to grant credit to a tenderer and the banks approached by that tenderer refuse to provide such a statement, that tenderer may be permitted to prove its economic and financial standing by other appropriate means. Ingsteel brought an action against the Public Procurement Regulatory Authority to claim for damages for the loss of opportunity to win the tender, which referred a further question to the ECJ for preliminary ruling.
The ECJ’s response ruled that Directive 89/665 on the co-ordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contract requires member states to award damages to persons harmed by an infringement of EU law on the award of public contracts. In the absence of any indication to distinguish different categories of damage, the directive refers to any type of damage suffered by such persons, including that resulting from the loss of the opportunity to participate in the procedure for the award of a contract.
Therefore, Directive 89/665 precludes national legislation and practice that excludes the possibility, as a matter of principle, for a tenderer who has been unlawfully excluded from a procedure for the award of a public contract to be compensated for the loss suffered as a result of the loss of the opportunity to participate in that procedure with a view to obtaining the contract concerned (INGSTEEL spol. s r.o.,Metrostav, as, v Úrad pre verejné obstarávanie (Case C-547/22) ECLI:EU:C:2024:478).
In2 the bargain 